Don't Get Tripped up by Travel Time Pay

Posted By Deirdre F. Aretini || 14-Aug-2017

Don’t Get Tripped up by Travel Time Pay

Travel pay and compliance with the Fair Labor Standards Act (FLSA) for
non-exempt hourly employees is a confusing subject for most employers
and for good reason. While most questions require a fact-specific inquiry
and the application of the rules can produce some strange conclusions,
here are some basics to keep in mind when formulating a travel pay policy:

1.Commute Time is not Compensable

You probably already knew this. Generally, travel to and from the employee’s
residence to the employer’s work site is not compensable. This is
true even if the employee is required to travel to a different work site
in the same area as her usual work site or if the employee does not have
a regular work site and visits a different employer work sites each day,
even if the commute time is long. Of course, there are exceptions:

Exception Example: Employer, Red Umbrella Technologies requires Ellie, an hourly employee,
to perform work during her commute. For purposes of this example, Ellie
commutes via train and her employer requires her to provide updates to
its online file database and provide her supervisor at Red Umbrella with
a list of those potential clients she plans on visiting the next day.
Under these circumstances, Ellie’s commute would become compensable.

Exception: JEN-V Bio Defense requires employee, Kala, to report to an employer dictated
central location to receive instructions or pick up equipment before driving
to a job site to perform work for JEN-V. In this case, the travel time
from the central location to the job site would be compensable.

2.
Travel for One-Day Assignments Outside of the Employee’s Regular
Territory or Job Site is Compensable

When an employee who usually works at one job site or a number of job sites
within a specific territory are given a special one-day assignment that
requires him to travel to a job site in a different territory, all the
travel time outside the regular work day to get there and back, counts
as time worked. The only time that is not compensable would be meal breaks
in which no work is performed and the time spent traveling between the
employee’s home and the point of departure.

Example: Harold, an employee, usually works at Puppet Pizza’s location in
Drachedge County. His employer gives him a special, one-day assignment
that requires him to perform work at the employer’s job site in
Morburn County. The employee usually works Monday through Friday from
11:00 p.m. to 7:00 a.m. and takes a one hour lunch break. Harold’s
point of departure is Puppet Pizza’s location in Drachedge. His
travel to the employer’s location in Moburn County on the day of
the special assignment requires him to work an extra four hours outside
of her regular work hours, as he must leave the point of departure at
9:00 p.m. and does not return to his original point of departure until
9:00 a.m. that evening. Puppet Pizza must compensate Harold for the extra
four hours worked as a result of his travel to and from the employer’s
location in Moburn County. Further, to the extent that the additional
four (4) hours traveled results in Harold working over forty (40) hours
in any given weekly period (the work week is a seven (7) day period defined
by the employer, for example, Monday through Sunday), he would be entitled
to overtime pay (time and a half) for any hours worked in excess of forty
(40) hours in work week in question.

3. Sleepovers are Strange

When travel keeps an employee away from home overnight, it is considered
travel away from home. The normal waiting time at the travel hub (bus
stop, train station, airport) that precedes the travel time provided by
a common carrier will be approved at 2 hours for domestic travel and 3
hours for international travel at the straight time rate. The general
rule is that if an employee travels outside of her regular working hours
and outside of her home area at the employer’s direction and for
purposes of the employer’s business, this time would be compensable
under FLSA. The exception to this rule is when the employee travels by
common carrier or otherwise as a passenger
and does not perform work during such time. For example, if your employee’s duties require her to drive from
one location to another outside her regular working hours, she must be
compensated for all travel time. However, if the employee travels as a
passenger in a motor vehicle or a common carrier (i.e. plane, train, bus,
boat), you are not required to pay her for travel time, even outside normal
working hours, unless she is performing business-related activities while
traveling. The theory behind this rule is that traveling as a passenger
allows the employee time to engage in personal interests, which is a primary
element used by the Department of Labor to determine if an activity is
compensable or not compensable under FLSA.

Example:

The 813 Paranormal Special Investigators has a crew that is assigned to
work at an out-of-town assignment requiring the crew to be out of town
for several weeks. For purposes of this example, we will assume usual
work hours are 9:00 p.m. to 6:00 a.m., Tuesday through Saturday. The crew
will be driving to the out-of-town assignment in a company van that leaves
6:00 p.m. on Monday, and the drive to the investigation site will take
five (5) hours. So, the passenger employees in the company van should
be paid for the time spent traveling from 9:00 p.m. to 11:00 p.m. on Monday
because these hours fall within the 813 Paranormal’s work hours
(even though it is a Monday). The time spent traveling as a passenger
from 6:00 p.m. to 9:00 p.m. is not compensable. But the entire drive is
compensable for Nik, the driver assigned the task of driving the crew
to the work site, even the time that does not occur within Nik’s
regular working hours. Assuming that Nik is driving the vehicle at the
direction of the employer, the employer may establish a different rate
for driving than the Nik’s normal rate of pay. Thus, if Nic is usually
paid $20.00 per hour, 813 Paranormal could establish a driving rate of
$10.00 per hour in an attempt to reduce the cost for paid driving time.
There are a couple of caveats here: (1) the driving rate must be at least
the minimum wage; and (2) if employer choses to establish a different
driving rate, it will need to remember that both driving time and other
time must be counted when determining overtime hours and overtime will
need to be computed on the weighted average rate.

Please keep in mind constructing a travel pay policy for a nonexempt hourly
employee requires a detailed, fact-specific inquiry. The tips and examples
above are simply illustrations of some common issues that may arise in
developing a travel pay policy that complies with the FLSA. Although Florida
does not have any additional law addressing the issue, other states may
have more restrictive laws regulating travel pay.

This article provides general information and is not legal advice or opinions
on specific facts. For specific questions please contact us.

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